Contractualism

The term ‘contractualism’ can be used in a broad sense—to indicate the view that morality is based on contract or
agreement—or in a narrow sense—to refer to a
particular view developed in recent years by the Harvard philosopher
T. M. Scanlon, especially in his book What We Owe to Each
Other. This essay takes ‘contractualism’ in the
narrower sense. We begin with a brief summary of Scanlon's
contractualism, and then situate his view in relation both to other
social contract theories and to its main rival among impartial
accounts of morality—namely, utilitarianism. Our discussion is
then organised around a series of challenges to the contractualist
account, including those raised in Derek Parfit's On What Matters.

There is already a huge literature surrounding Scanlon's
contractualism. Our aim is not to summarise that literature—still less to contribute anything novel to it. Rather, we seek to
explain the distinctive appeal of contractualism, as well as
highlighting the challenges it faces from other theories.

Scanlon introduces contractualism as a distinctive account of moral
reasoning. He summarises his account thus:

An act is wrong if its performance under the circumstances
would be disallowed by any set of principles for the general
regulation of behaviour that no one could reasonably reject as a basis
for informed, unforced, general agreement. (Scanlon 1998,
p. 153).

But Scanlon's version of contractualism is not just concerned with
determining which acts are right and wrong. It is also concerned with
what reasons and forms of reasoning are justifiable. Whether or not a
principle is one that cannot be reasonably rejected is to be assessed
by appeal to the implications of individuals or agents being either
licensed or directed to reason in the way required by the
principle. Scanlon's version offers an account both of (1) the
authority of moral standards and of (2) what constitutes rightness and
wrongness. As to the first, the substantive value that is realised by
moral behaviour consists in a relation of “mutual
recognition”. As to the second, wrongness consists in
unjustifiability: wrongness is the property of being
unjustifiable. The wrongness of an action is not to be equated with
the properties that make it unjustifiable. Rather, it is to be equated
with its being unjustifiable; the character of wrongness is captured
by the higher order fact that wrong acts are unjustifiable. What wrong
acts have in common is that they cannot be justified to others. Thus
the various moral considerations that guide our substantive moral
reflection are unified by a single normative subject matter. In this
way, contractualism guides our substantive reflection about
wrongness. Wrong is the primary moral predicate; right is defined as
“not wrong”. One reason for focusing on wrong is to draw
attention to the domain that contractualism is concerned to map,
concerning what it is for one person to have been wronged by
another.

Moral requirements determine what it is to respond properly to the
value of persons as rational agents. The distinctive value of human
life lies in the human capacity to assess reasons and
justifications. Therefore, appreciating the value of a person involves
recognising her capacity to appreciate and act on reasons. The way to
value this capacity is to treat persons in accord with principles they
could not reasonably reject. In doing so, the agent is guided by a
principle that can rightly be characterised as one that the person
herself authorised that agent to be guided by, in thinking about the
appropriate way to relate to her. Contractualism illuminates the
compelling Kantian insight that we ought to treat persons never as
mere means but always as ends in themselves. It interprets this as
treating them according to principles they could not reasonably
reject.

Contractualism appeals to the idea of a social contract. It attempts
to derive the content of morality (and, in some versions, also the
justification for holding that we are obligated to follow morality)
from the notion of an agreement between all those in the moral domain.
Contemporary moral philosophy offers several other interpretations of
the social contract tradition. It is useful to distinguish
contractualism from these alternatives.

Contractarianism has its roots in Hobbes, whose account is
based on mutual self-interest. Morality consists in those forms of
cooperative behaviour that it is mutually advantageous for
self-interested agents to engage in. (The most prominent modern
exponent is David Gauthier. See Gauthier 1986.)

By contrast, any form of contractualism is grounded on the
equal moral status of persons. It interprets this moral status as
based on their capacity for rational autonomous agency. According to
contractualism, morality consists in what would result if we were to
make binding agreements from a point of view that respects our equal
moral importance as rational autonomous agents. Contractualism has
its roots in Rousseau, rather than Hobbes: the general will is what we
would jointly will if we adopted the perspective of free and equal
citizens. Contractualism offers an alternative to
contractarianism. Under contractarianism, I seek to maximise my own
interests in a bargain with others. Under contractualism, I seek to
pursue my interests in a way that I can justify to others who have
their own interests to pursue.

We next distinguish contractualism from the specific moral theory of
Kant. Kantian moral philosophers seek principles to which all rational
agents would agree, under certain idealised conditions. In order to
reach such an agreement, Kant notoriously needs to abstract away from
many (some would say too many) concrete features of our moral
lives. (See Onora O'Neill's gloss on the notion of agreement in
Kantian ethics; O'Neill 2003.)

Contractualism departs from Kant in various respects.
In particular, it offers a substantive account of the normative force
of morality, based on the value of a relation of mutual respect.
Reasonableness is not taken to be something that can be demonstrated
outside the moral point of view. Another difference is that
contractualism seeks principles that no one can
reasonably reject, rather than principles all would agree to.

However, Scanlon's contractualism has Kantian elements, as it seeks a
free agreement that elucidates both freedom and equality. We might say
that contractualism gives expression to ideas latent in Kant's
discussions of the Categorical Imperative (especially in the Formula
of Humanity and the Formula of the Kingdom of Ends, rather than the
more familiar Formula of Universal Law). Indeed, as we shall see in
section 4, Derek Parfit argues that, despite their differences,
contractualism does coincide with the best interpretation of Kant's
moral theory.

The most influential recent social contract theorist is John Rawls.
Rawls's contract differs from contractualism in two key
ways. (1) Rawls's contract is more Kantian, as he seeks
principles everyone would agree to, rather than principles
no-one could reasonably reject. (This contrast is especially
marked if we consider Rawls's Dewey Lectures (Rawls 1980), where his
work is at its most Kantian.) (2) Rawls's contract is political—it aims to set the general social framework for a liberal
society, rather than determining moral principles. As a result, Rawls
places the parties to his agreement behind a veil of
ignorance, where they do not know many key facts about their own
identity. This is to ensure that the resulting principles of justice
embody Rawls's commitment to liberal neutrality. For Rawls, we
ought to follow the principles that it would be rational for everyone
to choose, if they had to choose those principles without knowing
anything about themselves or their circumstances. Because each
person knows that they could end up being anyone, each must have
concern for all. In essence, Rawls uses self-interest behind a veil of
ignorance to represent a commitment to justice, construed as fairness
to all.

Contractualism, by contrast, invokes no veil of ignorance. I know my own
circumstances. It is not self-interest combined with ignorance of self
that makes me take account of everyone's interests, but rather my
concern to justify myself to everyone else. This motivation is a key
feature of Scanlon's contractualism. All social contract
theorists—even contractarians—agree that agents
want to justify themselves to others. However, for the contractarian,
such a desire is merely strategic—justification is
instrumentally useful because it enables me to get others to do what
serves my interests. For the contractualist, by contrast,
agents are morally motivated by an intrinsic desire to justify
themselves to others. Having this desire is part of what it is
to be a moral agent.

Despite these differences, contractualism does have
several points in common with other social contract theories. In
particular, contractualism aspires to provide a
non-utilitarian theory that grounds moral status on a universal trait
of persons—rational moral agency—and thus
provides general principles whose scope is global. It is to this
contrast with utilitarianism that we now turn.

Contractualism is an impartial moral theory. In contemporary moral
philosophy, the main impartial moral theory outside the social contract
tradition is utilitarianism. Utilitarianism takes persons'
moral status to be grounded on their capacity for well-being and
suffering, and takes well-being to be the sole moral value. It takes
the appropriate response to this value to be to promote it.
Utilitarianism is thus a consequentialist moral theory—morality is concerned with bringing about valuable outcomes.

There are three fundamental contrasts between contractualism and
utilitarianism. The first difference is one of scope. (1)
Utilitarianism applies to every area of morality, while contractualism
covers only the realm of what we owe to one another. Scanlon himself
acknowledges that this is not the whole of morality. We return to this
difference in sections 9 and 10.

The remaining two differences between contractualism
and utilitarianism relate to content. (2) Contractualism does not
aggregate, but rather focuses on the standpoint of individual
persons. (3) Contractualism does not regard well-being as a basic moral
concept, but instead allows a variety of personal reasons.

The only reasons for and against a principle that count when we are
judging whether or not it can be reasonably rejected are “various
individuals' reasons for objecting to that principle and
alternatives to it” (Scanlon 1998, p. 229). The
acceptability of a principle depends on a one-by-one assessment of the
strength of the reasons that individuals would have for rejecting the
principle, compared to the alternatives to it. Since individuals
must be objecting on their own behalf and not on behalf of a group,
this restriction to single individuals' reasons bars the
interpersonal aggregation of complaints; it does not allow a number of
lesser complaints to outweigh one person's weightier complaint.

Unlike utilitarianism, therefore, contractualism rejects the
interpersonal aggregation of burdens. (We discuss some
important exceptions below.) This is one of the main respects in which
it differs from utilitarianism. Contractualism thus captures a key
feature of our moral life that, as Rawls famously argues,
utilitarianism ignores: the feature he calls “the
separateness of persons” (Rawls 1971). Instead
of lumping everyone together and allowing one person's rights to
be trampled to provide greater aggregate benefits to others,
contractualism recognises that each of us has a unique life to
live. The contractualist objection to utilitarianism is that it
does not guarantee principles that benefit each individually, and that
command each person's free assent.

Aggregation (in some form) is essential to utilitarianism.
Situations frequently arise where one person's pleasure is in
conflict with another's, or where the only way to secure one
person's pleasure is to cause someone else pain, or where we must
choose which person suffers which pain. We must find a way to balance
the moral reasons generated by different people's pleasures and
pains. If we retain a utilitarian perspective, then it is hard to see
how we can do this without some kind of aggregation—adding
different pleasures and pains together.

By contrast, contractualism seems able to
avoid aggregation, because it begins, not with individual pleasure and
pain, but with the more flexible concept of reasons. Unlike my
pleasures and pains, my reasons can be responsive to the situation of
others. To see this, we explore two features of Scanlon's use of
reasons: rejection must be reasonable, and reasons are not limited to
well-being.

In order to reasonably reject a principle, I must have some objection
to it. This objection may begin with some direct harm I suffer as a
result of the principle. So far, if the harm involved is pain or
suffering, contractualism mirrors utilitarianism. However, the fact
that a principle impacts negatively on me is not
sufficient. To know whether I can reasonably reject
the principle, I must also ask how it impacts on others. If a
principle imposes a certain burden (b1) on me, but every
alternative imposes a greater burden (b2) on someone else,
then b1 does not give me a reason to reject the principle. If
I am reasonable, then I withdraw my objection when I see that your
reason is more pressing. (By contrast, it would make no sense to say
that a utilitarian has ‘withdrawn her pain’ because she
has noticed that someone else's pain is greater.) So we conclude that
the principle imposing b1 on me cannot be reasonably
rejected. And we reach this conclusion without having to aggregate
anything.

In contractualism, individuals are motivated both by self-regard and
by respect for others. Since each person is partly motivated by concern
for her own interests, contractualism can ground consequentialist
reasons. Part of what we owe others is to promote their
interests. Contractualism can therefore accommodate important
consequentialist aspects of the structure of moral thought.

Unlike utilitarianism, however, the account of value underlying
contractualism does not claim that there is only one rational attitude
to have towards value. So contractualism can accommodate
consequentialist aspects without being a completely consequentialist
theory. (This represents an advantage of contractualism over
naïve versions of Kantian ethics, which reject all
consequentialist reasons and thus make it very difficult to explain
why the consequences of our actions have any moral significance at
all.) In contrast to an outcome ethics (such as utilitarianism), what
is foundational for contractualism is not minimising what is
undesirable, but considering what principles no-one could reasonably
reject. Moral principles are grounded in the idea of living with
others on terms of mutual respect. This means that as well as
accommodating some consequentialist aspects, contractualism can also
accommodate certain deontological intuitions: commonsense prohibitions
against treating persons in certain ways even in circumstances in
which the aggregate value of the consequences of doing so is very
great. Which prohibitions are justified? This question “is best
answered by considering what principles licensing others to take our
lives could be reasonably rejected” (Scanlon 1998,
p. 85). Among these principles might be ones that involve
“accepting a certain view of the reasons one has: that the
positive value of saving others does not justify killing
someone” (Scanlon 1998, p. 84).

A further resource available to contractualism that is not available
to utilitarianism is that my reasons for rejecting a principle are not
limited to my well-being—however broadly that notion is
construed. For ease of exposition, let us for the moment follow the
utilitarian, and think of ‘burdens’ solely in terms of
negative impact on my well-being. My reason for rejecting a principle
might be, not so much that it imposes a certain burden on me, but the
way in which it imposes that burden—and what the principle thus
says about me. For instance, consider a principle that allocates
benefits and burdens on the basis of race, and contrast this with a
principle that allocates the same benefits and burdens randomly. I
cannot reject the racist principle simply because of the burden it
imposes on me—after all, the random principle imposes an
identical burden on someone else. Rather, I reject the racist principle
because, by regarding my race as a relevant ground for the distribution
of benefits, it imposes that burden in a way that constitutes a failure
to respect my status as a person.

If we abandon the utilitarian link between burdens and well-being,
then we might say that the method of distribution of burdens itself
imposes an additional burden of a different kind—the burden of
not being respected. Similarly, I might reject a principle that
arbitrarily exempts some people from a burden borne by everyone else,
on the grounds that such a principle treats me unfairly—even if
the alternative is a principle that places that burden on everyone. For
instance, imagine a situation where, in order to preserve the grass, we
need at least 90% of the people to avoid walking on the grass, but it
doesn't do any harm if 10% do walk on the grass. I might object
to a principle that allows the members of a privileged racial minority
to walk on the grass, even if my preferred principle is one where
no-one gets to enjoy grass-walking. My rejection is not based on envy,
but on the disrespect this principle shows by regarding race as a
legitimate ground for distribution.

Contractualist reasons are more flexible than
aggregation, as they allow us to respond directly to morally
relevant considerations, rather than having to rely upon some complex
utilitarian calculation. (Think of the artificial epicycles a
utilitarian needs to go through to reject a principle that efficiently
maximises happiness, but happens to be racist or arbitrary.) By moving
straight to the moral heart of the matter, contractualism also seems to
offer a more satisfying explanation of why certain behaviour
is wrong.

Contractualism can thus produce principles that balance the
interests of different people against one another, without explicit
appeal to aggregation. This is a significant development in moral
philosophy, as it enables us to separate arguments against
utilitarianism into two classes: arguments against
impartiality and arguments
against aggregation. Objections in the first class also apply
to contractualism, while those in the second class do not. We return
to aggregation in section 7; and consider one common objection to
impartiality in section 8. Once contractualism has entered the field,
we cannot treat arguments for impartiality as if they were arguments
for utilitarianism itself.

Before turning to problems for contractualism, we first address a
challenge to its distinctiveness. In On What Matters, Derek
Parfit argues that rule consequentialism, contractualism, and the best
interpretation of Kant's moral theory all coincide. The result is a
triple theory, according to which “an act is wrong just when
such acts are disallowed by some principle that is optimific, uniquely
universally willable, and not reasonably rejectable” (Parfit
2011, volume 1, p. 413). As contractualism presents itself as an
alternative to both consequentialism and Kant, this would be a very
significant result.

The convergence argument explicitly deals, not with
Scanlon's own theory, but with “what I believe to be the
best version of Scanlonian contractualism” (Parfit 2011, volume
1, p. 412). Parfit defends two key ‘improvements’, by
rejecting two restrictions that Scanlon places on the reasons that can
be offered for rejecting a moral principle, namely:

“Individualist Restriction: In rejecting some moral
principle, we must appeal to this principle's implications only
for ourselves and for other single people” (Parfit
2011, volume 2, p. 193). Or, in Scanlon's own words: “the
justifiability of a moral principle depends only on individuals'
reasons for objecting to that principle and alternatives to it”
(Scanlon 1999, p. 229).

In other words, the convergence argument replaces Scanlon's original
formulation of contractualism, where all reasons for rejection must be
the personal complaints of specific individuals, with a more
impersonal version.

We first assess the striking claim that, despite the differences noted
in section 2, contractualism coincides with the best interpretation of
Kant. In a cumulative argument spread over several chapters, Parfit
argues that the best interpretation of Kant's moral ideas yields the
following claim:

Kantian rule consequentialism: Everyone ought to follow the
optimific principles, because these are the only principles that
everyone could rationally will to be universal laws. (Parfit
2011, volume 1, p. 411)

Even if we accept the convergence of Kant and rule consequentialism,
it still remains to be shown that these optimific and uniquely
universally willable principles are the only set of principles that
no-one could reasonably reject. The key step in this second prong of
the convergence argument is the claim that “when there is only
one relevant principle that everyone could rationally choose, no one's
objection to this principle could be as strong as the strongest
objection to every alternative” (Parfit 2011, volume 2, p.
245).

This key claim seems open to obvious counter-examples—cases
where contractualism seems to diverge from rule consequentialism. Most
striking are those cases where “we can either save one person
from some great burden, or give much smaller benefits to many other
people, who are all much better-off” (Parfit 2011, volume 2,
p. 246).

Proponents of the convergence argument, following Parfit, will divide
these cases into two classes. In some cases, the optimific rule
consequentialist principles instruct us to favour the
individual. Consider Scanlon's own example where we must choose
between electrifying an innocent person and disrupting millions of
people's enjoyment of a televised sporting event. Here, many rule
consequentialists will argue that the optimific rules do instruct us
to save the innocent person. If so, the convergence between rule
consequentialism and contractualism is straightforward. In its
contest with rule consequentialism, contractualism cannot draw its
intuitive appeal from such cases.

We must turn, then, to those cases where the optimific rule
consequentialist principles do instruct us to provide the smaller
benefits to many others. Here, the convergence argument must deny
that the solitary individual can reasonably reject the optimific
principles. This is where Parfit's ‘improvements’ on
contractualism are vital to the convergence argument. As originally
formulated, contractualism departs from utilitarianism by allowing the
individual to reject the optimific principles whenever they place a
greater burden on her than her favoured principle places on
any other single individual. Proponents of the convergence argument
will favour instead a more impersonal formulation. While the
individual's own complaint is left undiminished, other people can now
reject her principle on
impersonal grounds—precisely because it fails to
maximise everyone's well-being. Faced with these impersonal
reasons, the single individual cannot reasonably reject the optimific
principles.

Despite its provocative claims, the convergence argument is, in one
respect, quite modest. It does not set out to prove that rule
consequentialism, Kantian ethics and contractualism necessarily
coincide. Rather, the conclusion is merely that plausible versions of
the three theories do not necessarily conflict. For this
modest purpose, it would be sufficient to construct one plausible
version of contractualism on which the optimific principles cannot
reasonably be rejected.

There is a methodological issue here. In his presentation of the
convergence argument, Parfit tests competing versions of
contractualism against intuitions regarding specific idealised
cases. This is not a peculiarity of Parfit's own presentation. Without
intuitions of this kind, the convergence argument cannot get off the
ground. Proponents of individualist formulations of contractualism
might reply that, in some key cases, Parfit's intuitions are not
neutral benchmarks, but rather reflect the considered moral judgements
of a consequentialist mind. This leaves it open to Contractualists to
simply stick to their guns—and argue that their view is
distinctive at the normative level, as well as the meta-ethical
level.

Commenting on Parfit's earlier claim that the best interpretation of
Kant coincides with the best form of rule consequentialism, Scanlon
observes that “the degree to which Parfit's conclusion should
seem surprising depends to a certain extent on how close the theories
he is discussing are to Kant's” (Scanlon 2011, p. 117). Similar
remarks apply to the convergence argument. The appeal of
contractualism is that it presents a genuine alternative to both
consequentialism and Kantian ethics. Those who are attracted to
contractualism because, in certain key cases, it coheres with
distinctively non-utilitarian intuitions, are likely to regard the
impersonal contractualism deployed in the convergence argument as an
abandonment of the core commitments of contractualism. The convergence
argument would then be of limited relevance. We return to these issues
below, when we consider the Individual and Impersonal Restrictions in
more detail. (See sections 7, 8,
and 10.)

We now turn to six problem cases for contractualism. The first two
concern the logical structure of contractualism—asking whether
its account of wrongness is either circular or incomplete. The next
two are puzzle cases where the most obvious interpretation of
contractualism seems to yield implausible results. The last two are
groups who should be included in the scope of morality, but who seem to
be left out by contractualism: animals and future people.

The appeal to reasons beyond well-being brings out a common
objection to contractualism—that the whole apparatus of
reasonable rejection is redundant. The objection is as follows.
Contractualism says x is wrong if and only if x is forbidden by
principles no-one can reasonably reject. Anyone can reasonably reject a
principle on the grounds that it permits actions that are wrong. So a
principle that no-one can reasonably reject is a principle that permits
no actions that are wrong. If we don't already know which actions
are wrong, then we cannot use the contractualist apparatus. But if we
do already know which actions are wrong, then we don't need to
use it.

There is a related objection using ‘unfair’ instead of
‘wrong’. Suppose, following our previous discussion in
section 3, we
agree that contractualism allows ‘because it treats me
unfairly’ to count as a reason for rejecting a principle. We then
face the challenge that our judgments of unfairness are doing all the
real moral work, as contractualism now says that a principle is wrong
if and only if it treats someone unfairly.

To respond to this objection, contractualists must explain why
‘x is wrong’ and ‘x is unfair’ are not the sort
of claims that can feature as a reason for rejecting a principle. They
must also demonstrate that admitting reasons not based directly on
well-being does not commit us to admitting ‘x is wrong’ and
‘x is unfair’.

The Contractualist answer appeals to the conceptual link between
wrongness and justification. Whether an act is wrong depends, not only
on its direct impact on individuals, but also on whether a principle
permitting it can be justified to all concerned. ‘Because it is
wrong’ is not the kind of reason that can be fed into the
contractualist apparatus, since it is not something that happens to
individuals. Instead, wrongness is something that very apparatus
constructs out of individuals' reasons. The same goes for
‘because it is unfair’. In the example of the racist
principle, I reject the principle, not because it treats me unfairly
overall, but because it illicitly places weight on an inappropriate
moral distinction. My complaint concerns how a principle
treats me. To know whether an action is wrong, we must compare
different people's complaints, which we do by comparing one
principle's treatment of me with the way alternative principles
treat others.

An advantage of contractualism is that it can capture the wide range
of considerations that are relevant to moral deliberation. All
the considerations that provide individuals with reasonable grounds for
objecting to a proposed principle are relevant. As we have seen
above, these considerations include more than the direct (and even the
indirect) impact of a proposed principle on individual
well-being. This plurality of considerations is nevertheless
unified by a single normative domain or subject matter:
unjustifiability.

Some opponents of contractualism will object that contractualism is
not pluralist enough. They will object to the unified account of
wrongness. Is it plausible that all the considerations relevant to what
we owe to each other are unified by their relevance to whether the
principle permitting the conduct could be reasonably rejected? In
our moral deliberation about right and wrong actions, are all moral
considerations only relevant in virtue of how they affect whether or
not a principle licensing the proposed action is justifiable?

Take for example, the claim that it is wrong to inflict gratuitous
suffering on persons, and sentient beings in general. Imagine someone
torturing someone else. A utilitarian will object that, in our grasp of
the wrongness of the action, the most salient fact is that the
behaviour would inflict gratuitous suffering. This is much more salient
than the fact that the person could reasonably reject a principle
permitting such conduct. The utilitarian concludes that morality is
fundamentally about the avoidance of suffering. A pluralist
will conclude instead that morality is irreducibly plural—some
moral reasons are grounded on justifiability, but others are grounded
directly on suffering or pleasure.

The contractualist replies that what is most morally relevant in the
case of torture is that suffering is brought about through the
agency of another—not just that suffering occurs. This is
why being tortured is morally much worse than suffering similar
injuries through a lightning strike—the former is an affront
to my human dignity in a way that the latter is not. If we agree that
this is the really significant fact, then the advantage now lies with
the contractualist, whose moral theory explicitly gives a central place
to the notion of agency. (As ever, the dialectic can continue, as
utilitarians can reply that torture is morally worse than a lightning
strike because it involves a gross failure of benevolence). For a
foundational consequentialist account of morality (such as
utilitarianism), the wrongness of the action is based solely and
directly on the suffering it would cause. Against such an account, the
contractualist argues that the moral importance of promoting well-being
is always mediated via its effect on the justifiability of the relevant
principle: if an action fails to show sufficient concern for
someone's well-being then that person has strong grounds for
objecting to the principle.

It is, furthermore, important to recall that contractualism deals in
‘could reasonably reject’ not in ‘does reject’.
Contractualism does not say that gratuitously causing suffering is not
wrong until someone objects to it, or that gratuitously
causing suffering would not be wrong at all if no-one happened
to object to it. There is nothing accidental about the fact that a
particular act of gratuitously causing suffering is wrong. Rather,
gratuitously causing suffering is always intrinsically wrong—because it is (always and everywhere) the kind of thing that provides
grounds for reasonable rejection.

Contractualism and consequentialism thus gloss what is
objectionable about the same conduct in different ways. Instead of a
decisive intuition that counts against contractualism, we have a case
of distinct intuitions, where different theorists,
beginning from different intuitive starting points, end up with
different theoretical priorities.

We saw earlier that, unlike utilitarianism, contractualism rejects
aggregation. However, there are some cases where contractualism's
aversion to aggregation seems to lead to undesirable results. Consider
the following situation, drawn from a famous article by John Taurek
(Taurek 1977).

The Rocks. Six innocent swimmers have become trapped on two
rocks by the incoming tide. Five of the swimmers are on one rock, while
the last swimmer is on the second rock. Each swimmer will drown unless
they are rescued. You are the sole life-guard on duty. You have time to
get to one rock in your patrol-boat and save everyone on it. Because of
the distance between the rocks, and the speed of the tide, you cannot
get to both rocks in time. What should you do?

Suppose you decide to save the lone swimmer on the second
rock. Intuitively, this seems wrong. Surely you should have saved five
people instead of one. The challenge for contractualism is to explain
why what you did is wrong. Utilitarians have a straightforward answer,
based on aggregation. You should save the five people instead of the
one simply because five deaths is a worse result than one death. This
case is tricky for contractualism because it rejects aggregation. The
five people will each want to reject the principle that
allows you to save the one, by appealing to the fact that such a
principle leaves them to die. But the lone person on the second rock
will want to reject any principle that allows you to save the
five. And the reason for objecting to the principle is exactly the
same in each case—this principle leaves that person
to die. The five people cannot appeal to the fact that there are more
of them—because this is not an individual reason. (Suppose you
are one of the five. The fact that four other people will die is not
something you can object to, as it is not something that happens to
you.) It therefore looks as if we have reached a stalemate—and
perhaps the best solution (the principle that no-one can reasonably
reject) is to toss a coin. That way, each of the six people gets a
fifty-fifty chance of survival. No-one can reasonably reject
this principle on the grounds that it only gives
them a fifty-fifty chance of survival, because any alternative gives
someone even less chance. Tossing a coin is the only principle that
guarantees everyone at least a fifty-fifty chance. So it is
the only principle that no-one can reasonably reject.

One contractualist response is to bite the bullet, and accept that
coin tossing is the right answer. Many contractualists, however, wish
to capture the intuition that we ought to save the five. Recall that
an agent's reason for rejecting a principle can be based, not on its
effect on her well-being, but on what that principle says about her or
how it treats her. Imagine one of the five swimmers on the first rock
arguing as follows: “Coin tossing is clearly the right principle
if there is one person on each rock, as it balances their competing
reasons. If you apply the same principle when there are five on this
rock, you are saying it makes no difference that there are five rather
than one. So you are acting exactly as if I wasn't here, facing this
life and death situation. A principle that allows you—in
effect—to ignore my plight in this way doesn't show respect
for me. If there were one person on each rock, their claims to be
rescued would cancel out. So we then look to see whether there are
other people on either rock. There are several such people, and I am
one of them. My claim to be rescued remains un-trumped. So you should
rescue the five.” (For a critique of this argument, see Otsuka
2001.)

A further difficult kind of case for contractualism is where the
burdens that different persons stand to suffer are unequal—and
so cannot balance each other and cancel each other out—but are
still very severe in each case. The following example is suggested by
Derek Parfit's discussion of contractualism and aggregation (Parfit
2003). Consider a choice between two scenarios. In the first, one
person suffers agony for a hundred years; while in the second a
million people suffer agony for a hundred years minus a day. An
additional day of agony is a considerable burden. Therefore if we
consider the situation from the perspective of the single individuals
involved, it would seem that the first person's complaint (‘I
will suffer for a hundred years’) outweighs the complaint of any
other single individual (‘I will suffer for a hundred years
minus a day’). However, a utilitarian would argue that, in this
case, the second scenario is worse.

A utilitarian might conclude that, while this ideal of choosing a
scenario that is acceptable to each person from his or her personal
point of view is extremely appealing, it is not always attainable. In
particular, this ideal is not practical when we cannot avoid placing a
severe burden on at least one person. Contractualism focuses each
person's mind on the burdens imposed on himself or herself, and
on other individuals—and invites us to withdraw our burdens if
we see other individuals suffering much more under a competing
principle. However, in our present example, each of the individuals
in the second scenario would find the situation unacceptable from their
personal point of view, simply because of the magnitude of the
suffering it involves. It is not plausible that they would withdraw
their complaint because the person in the first scenario stands to
suffer a slightly greater burden. It can be argued that in such
cases we should give intrinsic moral weight to the number of persons
who suffer a severe burden and so minimise the number of persons for
whom the situation is unacceptable.

The contractualist has several possible replies. They could simply
deny the utilitarian's intuition. Perhaps it is wrong to impose a
greater burden on a single person, even to save many others from a
slightly worse burden. Contractualists who want to capture the
utilitarian's intuition might argue that, just as complaints are not
always tied to well-being, the strength of an individual's complaint
need not be proportional to the loss of well-being. Perhaps a
principle that allows me to suffer for a century minus a day is just
as objectionable to me as one that allows me to suffer for a
century. Once the complaints are on a par, we can then appeal to our
earlier tie-breaking method, and conclude that it is wrong to favour
the one over the many. (A utilitarian will reply that in any context a
day of agony is an enormous moral burden—it is no less bad if
the person has already suffered for almost a century—so that
the complaint of the individual in the first scenario has to be seen
as significantly greater than that of any individual in the second
scenario.)

In chapter 21 of On What Matters, Parfit presents further
arguments that can be deployed against the individualist
restriction—which limits the grounds for rejecting a principle
to its implications for single people. First, Parfit presents
a series of cases where, he argues, “any contractualism that
incorporates the individualist restriction must conflict with all
plausible views about the distribution of benefits and burdens”
(Parfit 2011, volume 2, p. 198). One representative case is the
following (Parfit 2011, volume 2, pp. 199–200):

Case Six: The only possible alternatives are these:

Blue will live to the age of:

Each of some
number of other people will live to:

We do nothing

30

30

We do A

70

30

We do B

35

35

Following Parfit, utilitarians will object that, if we endorse the
individualist restriction, then “we ought to give Blue her 40
more years of life rather than giving 5 more years to Blue and to as
many as a million of these other people. … this is
clearly false” (Parfit 2011, volume 2, p. 200).

Second, Parfit offers a new argument that, when the individualist
restriction does enable the contractualist to reach the right conclusions, it
cannot do so for the right reasons. Consider the following case
(Parfit 2011, volume 2, p. 196):

Case Three: The only possible alternatives are these:

Future days of pain

for Blue:

for each of some number of other people:

We do nothing

100

10

We treat Blue

0

10

We treat the others

100

0

Here, the utilitarian says that, if the number of other people exceeds
ten, then we should treat the others, as this maximises total
well-being. Parfit argues that “most of us would reject this
utilitarian claim, believing instead that we ought to save Blue from
her great ordeal. We might even believe that we ought to save Blue
from her 100 days of pain rather than saving any number of
such other people from their much smaller burden of 10 days of
pain” (Parfit 2011, volume 2, pp. 196–7).

The individualist restriction enables contractualism to diverge from
utilitarianism in this case. Because the other people's reasons cannot
be aggregated, they cannot ever outweigh Blue's reason. But opponents
of the individualist restriction will object that this is a
coincidence. The real reason we should treat Blue is not because
Blue's burden would otherwise be greater, but because Blue would
otherwise be so much worse-off. For instance, suppose instead that, if
we do nothing, everyone (Blue included) will suffer 100 days of pain
[This is Parfit's Case Four]. We must now choose between
relieving Blue of all of her 100 days, or relieving everyone
(Blue included) of 10 of their 100 days of pain. Those who favour a
more impersonal formulation of contractualism will object that the
individualist restriction must instruct us to do the
former. “And [this conclusion] is clearly false” (Parfit
2011, volume 2, p. 202).

In Cases Four and Six, opponents of the individualist restriction will
argue that we can only get the right result by allowing the other
people to pool their individual complaints—otherwise, they
cannot hope to overrule Blue. Those who find this intuition compelling
may conclude that contractualists must drop the individualist
restriction, and instead accommodate Case Three by saying that
“people have stronger moral claims, and stronger grounds to
reject some principle, the worse off these people are” (Parfit
2011, volume 2, p. 202). Other contractualists may be prepared to bite
the bullet here, or to seek alternative ways to accommodate these
intuitions, on the grounds that the individualist restriction is an
essential feature of contractualism, without which contractualism
cannot hope to escape the extreme and alienating demands of
utilitarianism—the topic of the next section.

Impartial theories are often accused of being unreasonably
demanding. For instance, consider the fact that there are very many
very needy people in the world. A variety of aid agencies, which
currently rely on donations from private individuals, can alleviate
these needs. No doubt governments, multinationals, and others could do
far more than they do. But the question still remains: faced with such
urgent needs, at least some of which I could meet at comparatively
little cost to myself, how should I as an individual act?

Impartial moral theories often seem to give very demanding answers
to this question. This is easiest to see for utilitarianism.
Utilitarianism tells me to put my dollars wherever they will do the
most good. In the hands of a reputable aid agency, my dollar could save
a child from a crippling illness, and so I am obligated to donate it to
the aid agency. I should give my next dollar to an aid agency,
and I must keep donating till I reach the point where my own basic
needs, or my ability to keep earning dollars, are in jeopardy. Most of
my current activities will have to go. Nor will my sacrifice be only
financial. According to utilitarianism, I should also spend my time
where it will do most good. I should devote all my energies to aid
work, as well as all my money.

Perhaps we would admire someone who behaved in this way. But is it
plausible to claim that those of us who do not are guilty of
wrongdoing; or that we have a moral obligation to devote all our
resources to charity? Such conclusions strike many people as absurd.
This leads to the common objection that utilitarianism is unreasonably
demanding, as it leaves the agent too little room (time, resources,
energy) for her own projects or interests.

This is a serious objection to utilitarianism. If contractualism can
avoid a similar fate, then this will be a significant advantage. But is
contractualism less demanding than utilitarianism? It certainly seems
possible that contractualism will generate very demanding principles,
as it seems reasonable for those who are starving to reject any
principle permitting me to retain inessential resources rather than
meeting their most basic needs. I would then be doing something wrong
unless I do all that I can to save other people's lives—at least until I reach the level below which I would
be giving up necessary components of my own well-being.

A similar problem for contractualism is presented by Thomas Nagel,
who argues that, in the present state of the world, it may be
impossible to construct any set of principles which no-one can
reasonably reject. Any possible principle of aid will either make
unreasonable demands on the affluent (from their point of view), or pay
inadequate attention to the basic needs of the destitute (from their
point of view). If the notion of reasonable rejection is at least
partly determined by the agent's own perspective, then any
principle will be reasonably rejected by someone. (Nagel 1991 and
1999).

Contractualists might reply that principles of aid presuppose some
background set of entitlements, guaranteeing me the free use of my own
resources. This raises two problems. The first is that,
from the fact that I own something, it does not follow that I do not
have an obligation to give it away. The most that might follow is
that others may not force me to do so. The second problem is
that, if our overall theory is Contractualist, then the property rights
themselves must be given a Contractualist justification. We need
a system of property rights no-one can reasonably reject. Any
system where property rights are very unequally distributed will be
rejected by those who miss out.

How might contractualism reply to this demandingness objection? Like
any impartial moral theory, contractualism can bite the bullet, and
argue that morality is very demanding. The contractualist apparatus
explains why morality is demanding—if we seek to act
in a way that we could justify to others, then we must adopt principles
that no-one can reasonably reject. Given the state of the world, these
principles will seem very demanding to those who are affluent—but the alternative would be principles that place an even greater
burden on those who are worst-off.

For instance, Scanlon himself reaches the following principle
through contractualist reasoning:

The Rescue Principle:

If we can prevent something
very bad from happening to someone by making a slight or even moderate
sacrifice, it would be wrong not to do so (Scanlon 1998, p. 224).

This principle could make very significant demands, especially if we
were continually facing situations where a slight sacrifice would save
someone's life. If my sacrifice is much less than the very bad
thing I prevent, it is hard to see how I can reasonably reject this
principle.

More controversially, one of us has argued previously that analogous
reasoning leads to an even more demanding principle.

The Stringent Principle:

If we can prevent
something very bad from happening to someone by making a great
sacrifice (e.g., giving most of our income to aid agencies and spending a
lot of our spare time on campaigning and fund-raising), it would be
wrong not to do so (Ashford 2003, p. 287).

If the ‘great sacrifice’ is
nevertheless significantly less bad than the
‘very bad thing’ that might happen, it is hard to see how I
can reasonably reject this principle. If the ‘very bad
thing’ is an agonising death, this principle can be very
demanding indeed.

It may be argued that even if this stringent principle follows from
contractualism, that is not a problem for the
theory. Perhaps, in the current state of the world, we should
expect any moral theory grounded on each person's equal moral
status to be extremely demanding, given the drastic and irrevocable
impact on those in need if they are not helped, and the fact that there
are constantly so many in this position (Ashford 2003, p. 292–2).

However, many moral philosophers—contractualists included—seek a more moderate moral theory. If contractualism is to
avoid being extremely demanding, the challenge is to stop short of the
stringent principle. We need to find a principle that allows me to
choose my own lesser good over a (significantly) greater good for
someone else—and then to show that this principle cannot be
reasonably rejected. For instance, suppose I spend my spare evening
(and spare income) going to the movies rather than donating the time
and money to a charity which could thus have saved someone's
life. We need an explanation of why those who die as a result cannot
reasonably reject the principle that permits this behaviour.

The most promising answer lies, once again, in the possibility that
my grounds for rejecting a principle are not necessarily confined to
its direct impact on my well-being. I might reject a principle
requiring me to devote all my time and energy to charity, not simply
because of the burdens it imposes on me but because, in leaving me no
room for my own personal projects, it fails to respect me as a person.
(The destitute person will reply that a principle allowing me to leave
her to starve fails to respect her as a person. The challenge for the
contractualist is to distinguish these two complaints. For one attempt,
see Kumar 2000.)

Responding to Parfit's presentation of the convergence argument, and
his critique of the individualist and impersonal restrictions, Scanlon
notes that, because it rejects those restrictions, any impersonal
reformulation of contractualism, is much more demanding than the
original formulation of contractualism (Scanlon 2011). This charge
has a particular dialectical significance, as rule consequentialists
often present their theory as a more moderate alternative to the
extreme demands of act consequentialism. If it retains those
restrictions, contractualism will always be less demanding than these
alternative theories—even if its demands are greater than
commonsense morality might normally expect.

Social contract theories notoriously leave out non-human animals. If
all moral obligations are between parties to the social contract, then
we have no obligations regarding animals who cannot be parties to the
contract. So (for instance) torturing
non-rational animals cannot be wrong. By contrast, utilitarians have no
difficulty explaining why it is wrong to torture animals. This seems to
place contractualism at a comparative disadvantage. Can contractualism
provide an adequate account of our moral obligations to animals? Does
it need to?

Scanlon offers two solutions. The first is to limit the scope of his
account. Contractualism is not an account of the whole of
morality, but only an account of the morality of what we owe to other
persons. This leaves open the possibility that our obligations to
animals fall outside this part of morality. Scanlon also explicitly
puts aside any moral obligations we might have in regard to the natural
environment (Scanlon 1998, p. 179).

Scanlon also suggests a possible way that obligations to animals could
be accommodated within contractualism. This is via the notion of
trustees, to whom justifications of proposed principles can be
offered, on behalf of the animals they represent (Scanlon 1998,
p. 183).

Utilitarians will object that this second solution provides too
indirect an account of what ultimately grounds our obligations to
animals. The fact that it is wrong to inflict unnecessary pain on
animals is not most plausibly explained via the notion of whether this
behaviour could be justified to a trustee of the animals. Rather,
it is wrong simply because of the suffering the animal feels. A
utilitarian will add that, once we realise that this is what is wrong
in the case of animal suffering, we should draw the same conclusion
about human suffering. It is their capacity for suffering rather than
their capacity for rational agency that plays the most salient role in
explaining the wrongness of torturing humans.

A contractualist can reply as follows. Contractualism captures the
central sense of wrongness, one that plays a role in how individuals
understand what they are accountable to one another for. The case of
animals shows that this is not the only notion of wrongness. But, once
we reflect on the differences between the two cases, we see why our
obligations to one another are so different from any obligations we
might have to animals—precisely because we cannot meaningfully
justify ourselves to them. Animals are
not a special problem for the contractualist, but rather an opportunity
to explore what is distinctive about the contractualist approach.

Another problem facing any social contract theory concerns our
obligations to future people. It is hard to see how we can have any
obligations to such people, as they cannot be parties to our contract.
This is principally because of the absence of any possibility of
mutually advantageous interaction between distant
generations. The quality of life of future generations depends to a
very large extent on the decisions of the present generation. By
contrast, our quality of life is not affected at all by their
decisions. We can do a great deal to (or for) posterity but posterity
cannot do anything to (or for) us. This power imbalance is often
characterised in terms of the absence of Hume's “circumstances
of justice”. (The phrase is borrowed from Rawls 1971,
pp. 126–130.)

For contractarians, for whom morality is an agreement for
mutual advantage, it follows that we have no obligations to future
people with whom we cannot interact. A similar problem arises for those
like Rawls who seek to base the social contract on some modification of
self-interested behaviour—such as self-interest behind the veil
of ignorance.

Contractualism, by contrast, easily avoids this particular problem, as
it begins by assuming that moral agents are motivated by a desire to
justify themselves to others. There is no reason why those others must
be currently existing people. When deciding how to act, I can ask
myself whether future people who are affected by my actions might
reasonably reject a principle permitting those actions. For instance,
if I want to construct a power plant that will leak radiation in the
future, it makes perfect sense to ask whether those who will suffer as
a result might reasonably object to my behaviour. Because it works
with the possibility of reasonable rejection—rather than
actual bargaining—contractualism can accommodate obligations
to future people. This is a significant advantage over other social
contract theories.

However, there is a second problem regarding future people—one that does seem to apply to contractualism. This problem
owes its prominence in recent philosophical debate to the work of Derek
Parfit, to whom we owe the following example (Parfit 1984, pp.
351–379):

The Summer or Winter Child. Mary is deciding when to have a
child. She could have one in summer or in winter. Mary suffers from a
rare condition which means that, if she has her child in winter, it
will suffer serious ailments which will reduce the quality of its life.
However, a child born in winter would still have a life worth living,
and, if Mary decides to have a child in summer, then an altogether
different child will be born. It is mildly inconvenient for Mary to
have a child in summer. (Perhaps she doesn't fancy being heavily
pregnant during hot weather.) Therefore, she opts for a winter
birth.

Mary's behaviour seems morally wrong. Utilitarians have a simple
account of why Mary's behaviour is wrong, as she brings about less
human happiness than she could have done. Yet it seems that
contractualism cannot capture this intuition. Consider a principle
permitting Mary's behaviour. If Mary's behaviour is wrong, then this
principle must be one that someone can reasonably reject. But who? Not
the Winter Child—because he would otherwise never have existed
at all. And not the Summer Child—because he doesn't exist.

Perhaps the most promising contractualist defence lies, once again,
in the possibility that my grounds for rejecting a principle are not
necessarily confined to its direct impact on my well-being. We might
separate two moves the contractualist can make here. They might argue
(1) that the grounds for rejecting a principle need not be its impact
on my well-being; or (2) that it need not be its impact on
my well-being. Intuitively, what is objectionable about
Mary's behaviour is not anything to do with well-being, or with the
identity of future individuals. What is wrong is rather that Mary
fails to show adequate respect for ‘her future child’—whoever that child may turn out to be. Even though there is no
particular individual who can be said to have been harmed, there is
still legitimate ground for a complaint that a principle permitting
Mary's behaviour shows inadequate respect to future people. The
challenge for the Contractualist is to translate this complaint into
one that can be made on behalf of the Winter Child. (For one recent
attempt at such a translation, see Kumar 2003a. For a critique, see
Parfit 2011, volume 2, p. 235)

In chapter 22 of On What Matters, Parfit argues that the
impersonalist restriction—which rules out appeals to the
impersonal goodness or badness of outcomes—leaves any form of
contractualism that incorporates the individualist restriction unable
to respond to the non-identity problem.

Instead, Parfit argues that contractualists should permit
both personal and
impartial reasons as grounds for
reasonable rejection. Impartial reasons, here,
are grounded in the moral claims or the well-being of
individuals. “We have such impartial reasons to care about the
well-being of every individual or person” (Parfit 2011, volume
2, p. 238). The crucial feature of impartial reasons is that they are
not narrowly person-affecting. In a different people choice, we have
an impartial reason to maximise the well-being of future
people—even though different possible futures include different
groups of possible people. “Since [because of the non-identity
problem] we cannot appeal to the personal reasons that are
had by people who never exist, we should appeal to
the impartial reasons that are had by people
who do exist” (Parfit 2011, volume 2, p. 240).

As with the individualist restriction, we might wonder whether the
admission of impartial reasons effectively abandons the spirit of
contractualism. If every present person has the same impartial
reasons, and if those reasons cannot outweigh any individual's
personal reasons, then the resulting more impartial formulation of
contractualism will converge with rule consequentialism. But does this
result tell us anything interesting about Scanlon's
contractualism? More generally, will the resulting theory retain the
distinctive features of contractualism that appeal to those who are
unsatisfied with familiar alternatives such as Kantian ethics or rule
consequentialism?

–––, 1998. What We Owe to Each Other, Cambridge, MA:
Harvard University Press.

–––, 2000. “A Contractualist
Reply”,Theoria, 66(3): 237–245.

–––, 2002. “Replies”, Social Theory and
Practice, 28(2): 337–358.

–––, 2003a. “Replies”, Ratio, 16(4):
424–439.

–––, 2003b. “Contractualism and What We Owe to Each
Other”, in Pauer-Studer, H., (ed.), Constructions of
Practical Reason: Interviews on Moral and Political Philosophy,
Stanford: Stanford University Press.

–––, 2011, “How I am not a Kantian”, in D. Parfit,
On What Matters, Oxford: Oxford University
Press, Volume 2, pp. 116–139.